Executive Power in Wartime

President Obama campaigned for office largely on the claim that his predecessor had shredded the Constitution. By the Constitution, he could not have meant the document signed on September 17, 1787. Article II of that document begins with a simple declaration: “The executive Power shall be vested in a President of the United States of America.” Not “some” or “most” or even “all but a teeny-weeny bit” of the executive power. The President is vested with all of it. This is particularly noteworthy when compared with the enumerated legislative powers vested in Congress: “All legislative Powers herein granted.” The Founders understood, based in part on their unfortunate experience under the Articles of Confederation, that the branch of government most likely to be in need of the ability to act quickly and decisively is the executive. The branch most likely to overreach is the legislature.

Perhaps, then, candidate Obama was thinking of the Bill of Rights in claiming that President Bush shredded the Constitution. But leaving that question aside for now, let us consider how President Obama has fared in undoing the Bush policies he opposed. He began dramatically in January 2009 by issuing a series of executive orders. According to one, Guantanamo was to be closed within a year. Even though the principal planner of September 11, Khalid Sheikh Mohammed, or KSM, had announced that he would plead guilty before a military tribunal at Guantanamo, the Justice Department announced in November 2009 that the military commission was cancelled. Instead, KSM would be brought to the mainland United States to stand trial. In response, Congress passed a statute, relying on its constitutionally-enumerated power of the purse, directing that no federal funds be used to bring any detainee from Guantanamo to the U.S. As a result, the Guantanamo military commission trial for KSM and other detainees charged in connection with September 11 is back on.

Another executive order in January 2009 suspended the CIA interrogation program. Instead of these allegedly disgraceful and unconstitutional interrogation techniques, it was announced that anyone acting on behalf of the U.S. government, even a highly trained CIA operative seeking sensitive security-related information, is limited by the Army Field Manual. This manual—because it was drafted for general use—is pitched to the capabilities of the most junior recruit in the field interrogating someone he has just captured. In fact, it has been available on the Internet for years and has been used by terrorists as a training manual for resisting interrogation.

The abandoned CIA program involved—in what is probably the most disastrous marketing term since New Coke—“enhanced interrogation” techniques which were, in fact, completely lawful. When detainees were subjected to those techniques—detainees who self-selected as both knowledgeable of Al Qaeda and resistant to lesser techniques—we learned a great deal. Three of these detainees—Abu Zubaydah, Khalid Sheikh Mohammed, and Abdel Rahim al Nashiri—gave up a huge trove of valuable information. Not only did KSM disclose general information on how Al Qaeda moved money and people, but also specific information that helped disrupt other plots. One such plot involved airplanes attacking the Library Tower in Los Angeles. It was to be carried out by a South Asian group headed by a man named Hambali. Other information resulted in the capture of people involved in a plan to develop a biological weapons capability in the U.S. The list goes on.

Not only has this interrogation program been abandoned, but when people today are apprehended in connection with terrorist plots directed at this country—and there have been more than 20 since September 11—most are turned over immediately to law enforcement authorities, informed of their Miranda rights, and treated as routine criminal suspects.

What do we lose in this process? With the would-be Christmas Day bomber Umar Farouk Abdulmutallab, we lost the chance at information about who had built his bomb. From bombs that have shown up in packages originating in Yemen, it appears that the same bomb maker is still in business, and he is believed to be responsible for a bomb that injured Prince Mohammed Bin Nayef, the man largely responsible for Saudi Arabia’s counter-terrorism efforts.

Although Guantanamo remains open, the President remains committed to closing it. For example, no new detainees are being brought to Guantanamo. We learned a month or two ago that a man named Warsame was apprehended and was thought to be in possession of valuable intelligence. He was placed aboard a naval vessel and debriefed for two months, after which he was advised of his Miranda rights and brought to the U.S. The administration disdains military tribunals, notwithstanding the fact that they have been used in our history from the Revolutionary War to World War II and are provided for specifically in a statute passed by Congress called the Military Commissions Act.

The administration also remains committed to figuring out a way to release those detained in Guantanamo, despite the fact that at least 20 percent of Guantanamo alumni have returned to the battlefield. We know that figure because 20 percent have been recaptured or killed. How many others are still in the fight is anyone’s guess.

So after all of this, where do we stand? The intelligence gathering techniques adopted and followed during the preceding administration not only remain on the books but are actively pursued. And thanks to a vigorous and courageous exercise of the Article II Commander-in-Chief power, and the splendid performance of a team of Navy Seals, Osama bin Laden is dead. I certainly would not minimize that achievement. He needed killing, and he and we needed it to be done at the hands of Americans. It was done in a way that allowed us to exploit the trove of intelligence that was found in his home—though one wishes that less had been said about it at the time, rendering it more effective. And his death has great symbolic significance, because of the status he had attained during the ten years since September 11. But it is impossible to gauge the significance of bin Laden’s death unless and until we recognize the simple fact that our encounter with what he stood for began much earlier than September 11, 2001.

What bin Laden stood for was Islamism, which—insofar as it holds the U.S. in a weird combination of awe and contempt—has been incubating for about as long as we have known about the other two “isms” that we successfully conquered in the last century. As a movement distinct from the religion of Islam itself, Islamism traces back to Egypt in the 1920s, when the loosely organized Muslim Brotherhood was established by a man named Hassan al-Banna. Al-Banna founded the Muslim Brotherhood as a reaction to the modernizing influence of Kemal Ataturk, who dismantled the shell of what was left of the Muslim caliphate in Turkey, banned the fez and headscarves, and dragged his country into the 20th century.

Al-Banna’s principal disciple was also an educator—a bureaucrat in the education department of the Egyptian government named Sayyid Qutb. Qutb caused enough trouble in Egypt to get himself awarded a traveling fellowship in 1948, the year al-Banna was killed. Regrettably for us, Qutb chose to travel to Greeley, Colorado. And although it would be hard to imagine a more inoffensive place than post-World War II Greeley, Colorado, for a man like Qutb it was Sodom and Gomorrah. He hated everything he saw: American haircuts, enthusiasm for sports, jazz, and what he called the “animal-like mixing of the sexes,” even in church. His conclusion was that Americans were “numb to faith in art, faith in religion, and faith in spiritual values altogether,” and that Muslims must regard “the white man, whether European or American . . . [as] our first enemy.”

Qutb later returned to Egypt, quit the civil service, and joined the Muslim Brotherhood. He welcomed Gamal Abdel Nasser’s coup against the corrupt monarchy of King Farouk in 1952, but then became disillusioned with Nasser for failing to institute Sharia law. He opposed Nasser, and was subsequently arrested and tortured. However, he continued to write and agitate for Islam and against Western civilization, particularly against Jews, whom he blamed for atheistic materialism and considered the worst enemies of Muslims. He was released for a time, but eventually was re-arrested, convicted of conspiracy against the government, and hanged in 1966.

Many members of the Brotherhood fled to Saudi Arabia, where they found refuge and ideological sustenance. Qutb’s brother was among those who fled and taught the doctrine in Saudi Arabia. Among his students were Ayman al-Zawahiri, an Egyptian who would become a leading Al Qaeda ideologist, and a then-obscure Osama bin Laden, the pampered child of one of the richest construction families in the country. And the rest, as they say, is history.

That history did not come to these shores on September 11—or even on February 26, 1993, when a truck bomb detonated in the basement of the World Trade Center, killing six and wounding hundreds. It came at the latest in the 1980s, when a couple of FBI agents spotted a group of men taking what looked like particularly aggressive target practice in Calverton, Long Island. When they approached, they were accused of what we now call racial profiling, and they backed off. In November 1990, one of those men, El-Sayyid Nosair, assassinated a right-wing Israeli politician, Meir Kahane, in the ballroom of a Manhattan hotel. When the 1993 World Trade Center bombers demanded the freeing of Nosair from jail, it became apparent that the Kahane assassination had not been the lone act of a lone gunman. Authorities reviewed the amateur video of Kahane’s speech the night he was killed and discovered that one of those 1993 bombers had been in the hall when Kahane was shot. Further investigation disclosed that another was driving the intended getaway vehicle.

The man who served as the spiritual advisor to Nosair and the 1993 World Trade Center bombers, Omar Abdel Rahman, the so-called blind sheikh, along with Nosair and several others, were tried before me and convicted for participating in a conspiracy to conduct a war of urban terror against this country—a war that included the Kahane murder, the first World Trade Center bombing, and a plot to blow up other landmarks around New York and assassinate Egyptian leader Hosni Mubarak when he visited the United Nations. The list of unindicted co-conspirators in that case included Osama bin Laden.

At the time, all of this was treated as a series of crimes—unconventional crimes, to be sure, but crimes nevertheless. This despite the fact that in 1996, and again in 1998, Osama bin Laden declared that he and his cohorts were at war with the United States.

In 1998, the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were bombed almost simultaneously. Again the criminal law was invoked, this time in an indictment that named Osama bin Laden as a defendant. Apparently he was unimpressed, or at least undeterred, because in 2000, Al Qaeda bombed the USS Cole in Aden, Yemen, killing 17 sailors. It would have carried out the bombing of another naval vessel, but for the fact that the barge carrying the explosives was overloaded and sank.

Then came September 11, and to the call “bring them to justice” was added the call “bring justice to them.” We were told that we were at war more than 50 years after Sayyid Qutb determined that Islamists would have to make war on us, about 15 years after Islamists had made it clear that they were training for war with us, and five years after Osama bin Laden made it official with a declaration of war.

In fighting Islamism, we are handicapped at the strategic level by the refusal of those in authority to acknowledge the goals of our adversaries. Those goals are essentially political, and involve the recreation of an Islamic caliphate and the imposition of Sharia law over as broad a swath of the world as possible. This is a profoundly anti-democratic movement at its core, and it regards the whole idea of man-made law as anathema. Instead, we try to be inoffensive by using a term that originated in the administration in which I served, and we refer to a war on terror or terrorism. People who wish to quibble about what it is we are at war with take the discussion off into absurdity. One such person is the President’s Assistant for National Security, John Brennan, who, before an audience at the Center for Strategic Studies, ridiculed the idea of a war on terrorism or on terror, saying it is impossible to have a war on a means or a state of mind.

This lack of clarity also distorts the view of policy makers about what is happening in the Middle East, and so they daydream about democratic movements when the reality on the ground is more populist than democratic. The principal beneficiary of populism is more likely to be the Muslim Brotherhood than the local spokesman for Facebook. The credo of the Muslim Brotherhood is succinct and chilling: Allah is our goal, the Prophet Muhammad is our leader, the Qu’ran is our constitution, jihad is our way, and death in the way of Allah is our promised end.

If the death of Osama bin Laden is more than simply a spasm, or an opportunity to engage in self-congratulation—if it helps provide some insight into the nature of what it is we are fighting—then it will have been significant indeed. If not, its significance will be substantially diminished.

The signs do not seem promising. Even on September 11 itself, as was pointed out by Fouad Ajami, there was no discussion whatever of the 19 people who perpetrated the atrocity. Ajami pointed in particular to Ziad Jarrah, the most Westernized of the hijackers. Raised in Beirut, Lebanon, to be cosmopolitan in the spirit of that city, he then went to Hamburg, Germany, where he was radicalized, and he then wound up at the controls of Flight 93, the flight that was supposed to hit the U.S. Capitol. It didn’t because the passengers learned what had already happened at the World Trade Center and the Pentagon, figured out what was in store for them and their country, and chose to act.

There is much to be learned from those facts. Start with the last. We learn the importance of intelligence. The passengers on Flight 93 were able to act because of what they had learned about what was going on elsewhere. Intelligence gathering must be our number one priority. The people waging war on us are part of a movement that does not occupy any particular place or country that we can demolish and then pronounce ourselves the winners. They live in some cases among us, and the only way of opposing them successfully is to find out in advance what they intend to do and to thwart it.

Second, note that Jarrah was radicalized not in the Middle East, but in the West. We must be aware of those in our society who wish to create closed ethnic zones, where Muslims essentially run their own affairs and outsiders enter only at their peril. This has already happened in the suburbs of French cities, in parts of England, and in other places you would not expect it such as Malmo, Sweden, and it allows radicalization to go on undetected. Guidelines have been put in place to allow the FBI to function for the first time in its history as an intelligence gathering organization and not simply as a law enforcement agency. If the Bureau partners with state and local law enforcement, then the kind of insular activity that allowed Jarrah to be radicalized can be broken up. Those guidelines must remain in place, and must be defended.

Doing that will require an intelligent understanding of the part of the Constitution I didn’t discuss at the outset, the part that animated so much criticism of the Bush administration by those now in charge—the Bill of Rights. This part of the Constitution provides robust protection to both public and private activity that we value, which is essential for the continuation of our civic life. But it does not require that we close our eyes when there are people plainly setting the stage for activity that is in no way protected.

The First Amendment protects free speech and freedom of worship. It permits preaching even violence in the name of religion. But it does not guarantee that such speech will go undetected. Nor does it guarantee that evidence of it cannot be presented in a court when and if it is appropriate to charge that the speaker and those to whom he spoke understood this protected speech and took it as a call to unprotected action. This includes action that itself consists only of speech—such as an agreement to commit a crime, which is itself the crime of conspiracy.

The Fourth Amendment protects against unreasonable searches and seizures, and contains a separate warrant clause providing that warrants may issue only on a finding of probable cause. That does not mean that a search conducted for intelligence purposes requires a warrant, only that it be reasonable.

The Fifth and Sixth Amendments guarantee due process, counsel to those accused of crimes, and the right to confront witnesses, but their application is limited to trials occurring in Article III courts. How much process is due and what kind of evidence may be received and under what circumstances in other tribunals, such as military commissions, is an entirely different story.

The message lurking in the structure of the Constitution is that those acting lawfully under it deserve at least the benefit of the doubt when they act to protect the common good. That is not meant to be a statement or a suggestion of a jurisprudential standard, a standard of law; but it is meant as a prudential standard, a standard of civics and public discourse. This standard will help keep intact the system that we depend on to preserve the nation that Abraham Lincoln called the last, best hope of earth—words that are truer today than they were when he spoke them during another time of trouble.

(Michael Mukasey served as the Attorney General of the United States from 2007-2009, as a U.S. district judge for the Southern District of New York from 1988-2006, and as an assistant U.S. attorney for that same district from 1972-1976.)

CA Anti-Business Policies Shrink Incomes

A new study by the Public Policy Institute of California, a non-partisan think tank, confirmed that during the 2007-09 recession, every income bracket in California lost income faster than the equivalent brackets in the rest of the United States. Even more disturbing, all but the top 25 percent of earners now make less than equivalent income classes in other states.

Once known as a jobs magnet for its sunny climate, world-class universities and burgeoning high-tech opportunities, California has been transformed into a toxic anti-business state that works hard at drive businesses away.

From 2007, when the recession began, through its end in 2009, family incomes across all income classes dropped by more than 5 percent.  But instead of going up in the recovery, they continued to plummet by another 6 percent in 2010.

The declines weren’t spread evenly across the income classes.  Families with incomes in the top 10 percent saw their family incomes decline 5 percent. But the bottom 10 percent of California’s poorest families saw their incomes plummet by 21 percent.

In surveys, business executives regularly call California one of the country’s most toxic business environments and one of the least likely places to open or expand a new company.  Many firms still headquartered in California consciously refuse to expand their workforce. Brutalized by the bursting of the housing bubble and currently suffering an unemployment rate of 11.7 percent, almost 3 percentage points above the national average, California family incomes continue to rapidly lose ground.

Grim Economy

With already the lowest credit rating of any state in the nation, Controller John Chiang just released his monthly financial report covering California’s cash balance, receipts and disbursements for November. It demonstrated the state’s grim economic circumstances:

“After accounting for November revenues, total year-to-date general fund revenues are now behind the budget’s estimates by $1 billion, but expenditures for the year are over projections by $1.95 billion…. The combined current year cash deficit stands at $21.5 billion.”

The resolve to turn California against business started with Gov. Jerry Brown when he first was elected back in 1974.  Brown saw government’s job as restraining growth, limiting development and expanding environmental regulations.  In 1977, Time Magazine  declared “the California of the 60s, a mystical land of abundance and affluence, vanished sometime in the 70s.”

Sixteeen years after Brown left office in 1983, Gov. Gray Davis, Brown’s chief of staff during the 1970s, became governor in 1999.  Davis signed 33 bills that the state’s Chamber of Commerce called “job killers.”

Perhaps the most devastating was a restructure of workers’ compensation, which drove an increase in payments per worker from $2.30 per $100 of payroll to $6.44. That tripled the annual employment costs to business from $9 billion to $25 billion.

Four years later, voters recalled Davis and replaced him with Arnold Schwarzenegger.  Unfortunately, in 2006 the “governator” signed the AB 32,  Global Warming Solutions Act of 2006 that critics mourn will raise electricity rates in California by another 20 percent.

Toxic Business Environment

In a 2011 poll of various California business groups, 82 percent of executives and owners said that if they weren’t already in the state, they would not consider starting up here. And 64 percent said the main reason they stayed in California was that it was tough to relocate their particular kind of business.

For several years in a row, California has ranked dead last in the Chief Executive magazine’s poll about the business environment of states in the U.S.

Limousine liberals, rich environmentalists, union bosses and their pet politicians that comprise much of the top 25 percent of income earners in California have not suffered devastating income declines in the recent recession.

Responding to the Chief Executive poll, Steve Smith of the Labor Federation of California charged that it represented “little more than corporate honchos throwing around their weight to try to further strip working people of important protections that improve lives.”  But for the 75 percent of Californians not at the top income levels, California’s anti-business environment continues to inflict real pain on the lives of workers and their families.

(Chriss Street’s is the author of “The Third Way” and blogger at www.econservativenews.com. This story was first posted on CalWatchdog.)

More taxes on California’s top income earners is bad economics

California’s budget is in a constant state of peril or, perhaps more accurately, a budgetary inferno, due to “years of failing to match spending with tax revenues as budget gimmicks instead of honest budgeting became the norm,” as Gov. Jerry Brown accurately noted in his recent Open Letter to the People of California. Ironically Brown’s new proposal to raise tax revenue employs the same old approach to extract additional dollars from Californians rather than make tough, structural reforms and better steward existing resources.

It’s has become almost cliché to say “California does not have a revenue problem, it has a spending problem,” but the underlying issue is much more fragile than that. The state has a preferred source of money – high-income earners – but if Brown is successful in raising taxes on the state’s wealthiest residents, he runs the risk of milking the source dry. He also rests his hopes for the state’s long-term fiscal solvency on the most volatile incomes.

With great fanfare Gov. Brown this week announced his latest quick fix to save the state from further financial ruin with the predictable solution of a ballot initiative next year to raise taxes on residents of the Golden State. The proposal aims to raise $7 billion a year over five years by boosting the state sales tax for everyone and the income tax on people who make over $250,000 a year. The state may face a budget shortfall of $13 billion in fiscal 2012. This week’s the state controller’s office also announced that state revenue is $1 billion less than predicted.

Increasing the sales tax, even modestly, hits consumers in all income brackets, many already reeling from the lagging economy. And raising taxes on the highest-income earners is even riskier business because it further concentrates the source of state income. The top 1 percent of income earners in California already account for nearly one-half of all revenue. And according to the state’s nonpartisan Legislative Analyst Office, the portion of state taxes paid by that income bracket has fluctuated “from just above 30 percent in the early 1990s to nearly 50 percent in 2000 at the height of the tech boom.”

(Read Full Article)

(Brian Calle is an Opinion Columnist and Blogger for the Orange County Register. His blog is called Uncommon Ground.)

Spending Limit Act Would Put State on Road to Fiscal Health

Over the past several weeks, ballot measures have been proposed or filed that would impose tens of billions of dollars in new or higher taxes on California families and small businesses. These proposals range from increasing the existing sales, income or business taxes to imposing a new tax on services.

Rather than reining in out-of-control spending, politicians and special interests promote new and higher taxes that will damage our economic recovery, kill jobs and ultimately will be paid by California consumers. Despite a massive tax hike in 2009, we continue to face billion-dollar deficits year after year, and it is clear that the only way to restore budget accountability is for voters to impose a reasonable spending limit on the politicians.

Since 2000, state spending has increased by $39 billion while our debt remains nearly $200 billion. Our unfunded government employee pension liability has been estimated to be $500 billion. Budgets rely on gimmicks and are out of balance as soon as they are signed. Yet our elected officials refuse to reform pensions and fail to prioritize spending. Instead, they threaten cuts to programs like law enforcement and schools unless voters approve massive tax increases.

Legislative leaders also look for ways to game the system to increase taxes with a simple majority vote, not the two-thirds vote threshold required by law. And just a few months ago, lawmakers pushed through a measure in the dead of night that delayed a public vote on a rainy day fund initiative by two years. The rainy day measure would have required our state government to establish a prudent reserve to carry us through tough times and would have helped put California back on the road to fiscal health.

Voters have repeatedly indicated they are not willing to send more money to Sacramento as long as spending is out of control and politicians refuse to reform the state’s budget and pension systems. Doing so would be a waste of money, as Illinois learned this year when a $7 billion tax increase went almost entirely to fund pension promises to government employees.

In 1979, voters approved Proposition 4, the original spending limit measure, by a 74 percent margin. Then-Gov. Jerry Brown supported it. Prop. 4, also called the Gann Initiative after its sponsor, Paul Gann, placed a spending limit on state and local governments for each year equal to the prior year’s spending with adjustments allowed for changes in population and the cost of living.

Since that time, the Gann Limit has been diluted to the point of ineffectiveness. The only way to control government spending, root out waste, pay off our debt, and protect taxpayers is to impose a reasonable spending limit that will force California politicians to once again live within our means and stop the unrestrained growth of government spending.

That’s why the California Taxpayers Association, the Howard Jarvis Taxpayers Association and the Small Business Action Committee have filed the “Government Spending Limit Act of 2012″ and intend to qualify it for the November 2012 general election ballot.

Provisions in the Spending Limit Act would limit annual state appropriations to the prior year’s level, adjusted for growth in the state’s personal income, require surplus revenue to first be spent on debt service, and strengthen the two-thirds vote requirement for legislative enactment of laws that authorize or raise taxes.

Tens of billions in tax increases, like those recently filed or proposed, will not solve our fiscal problems. In fact, they would simply enable our elected officials to continue irresponsible spending instead of making the tough decisions we need to get our budget balanced once and for all.

Voters deserve a choice. Do they prefer the status quo, where politicians increase spending, rack up debt and refuse to address the problems of our state? Or do they want Sacramento to end waste, prioritize spending and live within our means?

It is time for the people to force the state to do what responsible families are doing themselves: make tough decisions, spend only what they can afford and live within their means.

(Teresa Casazza is the President of the California Taxpayers’ Association. This article was also written by Jon Coupal and Joel Fox, and was originally posted on Fox & Hounds.)

Tax Increase Measures in November Will Self-destruct – Read History!

Of the five proposed tax increases the Democrats are attempting to put on the November election ballot, none of them will pass.  Believe me.  All conservatives need do to derail these taxes is show up on election day no matter what, cope with a long ballot, and vote “no” on everything.

It will take a college degree to understand the Secretary of State’s voter information pamphlet for the November, 2012 election, given the partisan, pro-union move by the Legislature and the Governor to force measures off the ballot next June, and lump them all together in November.  The Democrats changed the balloting on propositions because they were afraid an “anti-union” proposed proposition had a less likely chance of passing in November rather than June.  However, history demonstrates they have made a big mistake, and will likely lose all five of their pending tax increase propositions also planned for the November ballot.  This is because past election results demonstrate that a crowded ballot really helps Republicans and the anti-government position on ballot propositions.  The reason is that voter demographics demonstrate that when a ballot is very crowded with candidates and measures, Republicans, seniors and conservative voters are at an advantage to win their issues, because they are better educated and more prepared to comprehend the information on the crowded ballot and actually vote, than voters registered in other parties in California.

Photo courtesy rwkvisual, Flick

Average citizens in California will be overwhelmed with a likely 200 or more page guide to ballot propositions that the Secretary of State will mail out five or six weeks before the November election. This monster “Official State Election Guide”  will create so much eye strain on the average citizen that it will be more useless to them than a telephone book.  Like the ubiquitous yellow page directories dropped off and quickly discarded at people’s homes and offices, the Secretary of State’s pamphlet will largely be sent right to the trash bin in most voting households. Because of jammed television and radio advertising for and against the much longer list of propositions to be considered next November, widespread voter fatigue will take hold and general voter turnout for the election will be somewhat depressed; and so-called “down ballot” voting (voting on items after someone votes in the Presidential election, which will top the ballot) on propositions will see significant drop-off because of voter confusion and lack of any knowledge about what the propositions really stand for.

The winning and losing sides will be decided by how well the California Tea Party, Republican party and conservative activists motivate their core supporters, and how well the unions motivate their voters.  But even if Obama is solidly ahead in California on election day, as expected, informed conservative voters may still get their way on most ballot propositions.  This is because disenchanted (and perhaps newly unemployed) young Obama voters who voted for him the “first time” in 2008, and likely some “Occupy” members upset with Obama, will just sit-out the next election.  These are exactly the voters that Democrats depend on to prop up their “tax-and-spend” dysfunction.  More importantly, many moderate/liberal occasional voters who do show up at the polls for Obama, will be bewildered by the crowded ballot, and will drop out of voting “down ballot” because of the confusion and fatigue on propositions.  Democrats will lose more votes there for their tax increases.  If the presidential election is (unlikely) competitive in California, conservatives will surely get their way.  In either case, better educated voters, who tend to be conservative and Republican, will persist and work through the ballot in higher percentages than other voting groups.  Their votes will be magnified by the drop out and drop off of the other voters the Democrats depend on.  I believe the Democrats have outsmarted themselves on jamming all the state’s ballot propositions into just one election next November, and history supports that a long, crowded ballot favors Republicans and conservatives.

The 2012 General election will surely have surely more than double the total number of ballot propositions (45 proposed ballot measures are actively in circulation now according to the Attorney General’s website) from the 2010 ballot.

The last time California experienced such a jammed statewide ballot proposition list was in November, 1990, when, even under the old rules of June and November balloting of propositions, there were 28 propositions on the ballot and the Secretary of State’s official voter guide was 224 pages long, broken down into a main mailing and a supplement, weighing about 3/4′s of a pound.  According to an article in the Los Angeles Times, though major newspapers write for citizens at the eighth-grade level, political scientist Philip Dubois at U.C. Davis said the ballot pamphlets are written at the “12th and 13th grade and above”, which is above the education level of the average California adult.  ”I don’t see how anybody can get through it” said Bruce Cain, then associate director of the Institute for Governmental Studies at U.C. Berkeley.

For November 1990, the State published 9.5 million of the 224 page voter pamphlets at a reported cost of $11 million, not including postage.  I suspect the State will need to publish 16 million of the pamphlets in November 2012.  Assuming costs have doubled, the printing would be between $35 and $40 million.  Nonprofit postage on a 3/4 pound bound printed mailer is about $1.25 per piece or, roughly, an extra $20 million or so.  Then there is the cost of list acquisition to be reimbursed to the Secretary of State.  I think it is fair to estimate that the real costs of just printing and mailing a “monster” voter pamphlet for the November election will be upwards of $65 million.  And it could end up being 250 pages long.

So the November, 2012 Secretary of State ballot pamphlet will be largely useless in informing voters.  In fact, it will confuse them more.  If the “Official Voter Guide” will be confusing, certainly there will be hundreds of thousands of confused potential voters on election day, and of those voters that actually go to the polls, they will continue to be confused.  If they vote down ballot on the propositions at all, the likelihood, according to most political scientists, is they will reflexively vote “no” on issues they do not understand.

Bruce Cain is still at U.C. Berkeley in a more senior role and it would be interesting to see if any otherwise lazy main stream media reporters pick-up on the idea of calling him to see what he thinks about the Democrats change in rules to an overloaded November ballot in 2012 and if his observations about the problems with the November 1990 ballot still apply.  I suspect he will say that an overloaded ballot is still a bad thing that reduces public participation in an election.  Meaning it works against less educated voters.  He might add that the Democrats should have known that when they changed the rules.  I will add once again that I think the maneuver will backfire on them.

Internet communications will benefit voters with computers and other communications devices in November 2012 when considering the propositions.  While young voters possess many of these assets, they are the least motivated voters according to statistics.  Highly motivated conservatives and tea party activists represent a demographic that possess these devices and computer knowledge of them in greater numbers than other voting demographics in this state.  These voters don’t need the Secretary of State’s voter pamphlet, because they will get voting clues in other ways, such as from political organizations and affinity groups that have their own voter guides.  They won’t be confused by the length of the ballot, will be able to see through the advertising campaigns, and will surely be very informed about the ballot propositions and how to vote on them.  They will also be motivated to vote by strong opposition to Obama.  While Obama will likely win the election for President in California, his voters will be generally less enthusiastic than four years ago, “Occupiers” will stay home, and a large swath of his voters that even do get to the polls can be expected to simply pass on voting on many of the other items that will be on the ballot, for reasons already stated here.

Oh, the results of that November 1990 election, the last time we had a really crowded proposition ballot? Republican Pete Wilson beat Democrat Diane Feinstein for Governor; the people rebelled against the Legislature and passed the current terms limits law, Proposition 140, proposed by conservative Lew Uhler of the California based National Tax Limitation Committee, even though it was out-spent 31-1; 12 of 14 bond measures for “emotional funding” issues were defeated; three proposed increases in taxes were defeated; a “green” measure (Proposition 141) was defeated; a tax revenue shift from motor vehicles to rail transit was defeated; a measure to allow outside contracting for prisons was approved (Proposition 139); and the only measure that passed that might otherwise be considered remotely “liberal” of the rest of the 28 propositions on the ballot was a measure to add gill and trammel net fishing to the list of sports fishing activities requiring a license.  In other words, the election result was a conservative grass-roots blow out.

(Jim Lacy is Publisher of California Political Review.  This article is adapted and revised for CPR from one previously published by Jim at www.flashreport.org on his blog string there.)

Losing Internet Tax Break – No Gift for Shoppers

For Californians, this week’s Cyber Monday online shopping fest marked the end of an era of cheap, sales-tax-free goods over the Internet.

Come next September, online retailers like Amazon will start collecting sales tax on purchases made by California shoppers, bringing a gleam to the eye of both government officials anxious for more revenue, and brick and mortar retailers convinced that Internet businesses are stealing bread out of their children’s mouths.

“It will level the field,” said Loni Hancock, the Berkeley state senator who wrote the law requiring the tax collections. “You will no longer get a 10 percent discount if you buy over the Internet.”

Well congratulations and all that, but Hancock shouldn’t expect a loud round of applause from California shoppers, who were quite fond of that 10 percent discount she so breezily dismisses.

Sure, state law has always required California residents to pay sales tax on online purchases, even if it meant totaling it up and sending a personal check to the state Board of Equalization. Although the guy who processes those checks probably has the softest job in Sacramento.

And it’s not fair that merchants spending money to rent storefronts, buy fixtures and pay local taxes should watch would-be customers wander in, check out their wares and then buy the same goods cheaper online.

The state also could really use the $200 million in Internet sales tax revenue that financial mavens expected when they put together the 2011-12 budget.

But while it’s easy to make a strong intellectual case for the Internet taxes, that argument doesn’t reflect two important parts of human nature.

First, people love a bargain. Second, they hate paying taxes.

It’s not that folks are opposed to taxes, which pay for government programs voters love. It’s just that they think other people should pay those taxes.

That well-known bit of nonsense verse, “Don’t tax you, don’t tax me, tax the fellow behind the tree,” is way more accurate than politicians would like to believe.

Which brings us to Gov. Jerry Brown’s anticipated plan to raise $7 billion a year by boosting the tax rate on people making more than $250,000 a year and tacking a half-cent on the sales tax.

Most Californians who aren’t Republican legislators are willing to admit the state needs more revenue to bring the budget back into an honest balance. And polls show a majority of them would vote for new taxes.

But while taxes on the wealthy hit “the fellow behind the tree,” the sales tax hike is aimed directly at you and me, which makes the governor’s plan a tough sell.

There’s a reason sin taxes are a hardy perennial, especially if they don’t target our sins. One well-known Sacramento journalist, for example, used to lament that he’d be the last smoker in California, paying $10,000 a pack.

So it’s no surprise that the targets for a variety of tax measures proposed for the 2012 ballot are such unpopular “other guys” as tobacco companies, oil and gas firms, corporations and big businesses. And while Jon Coupal of the Howard Jarvis Taxpayers Association suggested in this space the other day that voters would crush any effort to revise Prop. 13 and let commercial property be reassessed more frequently, if that went on the ballot as an  “us vs. them” measure, the result could be a toss-up.

For Brown, the first trick will be to convince labor, environmentalists, teachers and others to abandon their plans for tax initiatives boosting their pet projects and get them behind his budget-balancing effort. Good luck with that.

Even if he clears the field and gets his tax measure on the ballot, the governor still has to convince people to vote for it. And like it or not, Brown will have to answer the single most important question voters have in any tax election: What’s in it for me?

(John Wildermuth is a Journalist and Political Commentator. This piece was first featured in Fox & Hounds.)

Special Compensation for Public Employees Leads to Fiscal Consequences

Much of the debate surrounding public-employee compensation in California focuses on platinum pension plans, gold-plated health-care benefits, and salaries that often top private-sector pay. These salaries and benefits may be enviable, but perhaps more so is the range of bonus-pay categories for which public employees qualify. In fact, in the Golden State, public-employee unions have negotiated at least 400 categories of bonuses, covering everything from subsidized sunscreen for lifeguards to cash bonuses for police officers who actually wear their uniforms. The result: public workers accumulate bonuses and bolster salary by hundreds or even thousands of dollars each year. Described in union contracts as “premium pay,” “incentive pay,” and “differential pay,” the bonuses cost taxpayers billions.

Using state payroll data, a recent analysis by Bloomberg reporter Michael Marois found that “California’s public workers collected $1.7 billion of extra pay last year, more than half of it in overtime.” Some state workers qualify for “arduous-duty pay” of up to $1,200 a year; some prison guards are eligible to collect $130 per month for taking physical fitness tests; and some employees of the state Department of General Services qualify for a bonus of up to $10,000 for “exceptional performance.”

Such peculiar payouts are not just rampant at the state level; they are also customary even among cash-strapped cities. For instance, in Costa Mesa, police officers are entitled to “Uniform Assignment Pay” amounting to 2.5 percent of their salaries for wearing their uniforms. This is the same city, recall, where the city council this spring voted to lay off half of its workers and outsource most municipal services. In neighboring Newport Beach, motorcycle officers earn special pay to wash their bikes, bumping their pay up by as much as 5 percent. In the city’s latest memorandum of understanding with the Newport Beach Police Association, the payout is described as follows: “Assigned Motor Officers are responsible for keeping the motorcycle assigned to him/her cleaned and polished at all times. This work shall be performed outside of the regularly scheduled work hours; and compensated at the rate of six (6) additional hours overtime per month (six [6] hours at time and one half equals 9 hours compensation).”

Taken individually, some of these special-pay arrangements sound disturbing while others are downright laughable. Cumulatively, however, their impact is often staggering. The city of Santa Ana, for example, spent $9.2 million of its $200 million general fund on special pay in 2010, of which about $8.5 million went to public-safety employees. Last year, 441 Santa Ana city workers received more than $10,000 in special pay; 105 city employees collected $20,000; and three firefighters were paid more than $30,000 each. The city boasts at least67 types of special payouts for employees. Santa Ana, it’s worth noting, faces a projected $30 million deficit in the coming fiscal year.

Similar stories can be found in other cities. The city of Irvine paid out $2,612,879 in special compensation to 329 city employees in 2010, an average of $7,941 per recipient. The city of Orange doled out $2,885,495.93 in special pay from October 2010 to October of this year.

Special payouts have become common in local and state government as part of the collective-bargaining process and as a strategic negotiating tool for public-employee unions and elected officials alike. Unions can garner additional pay perks for employees when an outright raise is not obtainable, and elected officials can claim that they didn’t “officially” give raises to government workers. It’s a win-win for elected officials and unions but a major loss for taxpayers.

As with pensions and salaries, special pay tends to have a ratcheting effect. Unions and their contract negotiators use benefits in one city as leverage to win commensurate benefits in neighboring cities. Lawmakers all too often capitulate—with unsustainable fiscal consequences.

(Brian Calle is an editorial writer for the Orange County Register. This article was first published in City Journal.)

Why We Don’t Trust Politicians

Ask any of the politicians in Sacramento if they believe in government transparency, full disclosure of their official actions and the open and honest operation of state functions, and they will, to a man and woman, answer with a resounding, “yes!”

Yeah, right.

That must be why Speaker John Perez has struggled mightily to block the release of documents that would show how much each Assembly Member spends on their office. Perez has handled this as if lawmakers’ budgets were a top secret matter, revelation of which could have dire consequences for national security. More likely the only dire consequences will be for the public image of the spendthrift members of his flock.

Perez has been so intransigent about keeping the Assembly’s books closed to the public that the Sacramento Bee and Los Angeles Times were forced to file suit under the 36-year-old Legislative Open Records Act. The court has just issued a ruling agreeing with the newspapers, and compelling release of the records. As the documents become front page news, the speaker may find himself doubly embarrassed. First because of the revelations of wasteful spending of taxpayer supplied funds and, secondly (and perhaps even more damaging) because of his efforts to conceal this information from the public.

The Assembly leader would have done well to abide by the principle espoused in the old oil filter commercial, “You can pay me now or you can pay me later” when it will be a lot more expensive. However, the idea of doing the right thing in the first place is often lost on the Sacramento political class.

Of even greater consequence to average Californians is the shell game Governor Brown is orchestrating to impose a $3.2 billion energy tax.

A shell game is, of course, not a game at all. It is a confidence trick. The operator of the swindle appears to place a pea under one of three walnut shells and quickly shuffles them about. The sucker, or mark, is urged to triple his money by betting on which of the shells covers the pea. The mark never wins because, in fact, using sleight of hand the operator has palmed it. Yes, fellow taxpayers, in the Sacramento version of this game, we are the marks.

Back in August, a $3.2 billion energy tax extension was rejected by a bipartisan vote of the State Senate. The tax is called the “Public Goods Charge” and the nomenclature is another example of how Sacramento likes to mislead and confuse the public. This tax extension would have been tacked onto Californians’ utility bills. Politically-connected green energy interests lobbied hard for passage so they could continue to receive handouts for themselves at the expense of rate payers. The tax extension measure needed a two-thirds vote but did not muster even a simple majority.

A casual observer might think that this was the end of the matter and $3.2 billion would now be secure in taxpayers’ wallets.


After the Legislature voted down this tax, Jerry Brown immediately engaged in sleight of hand. He sent a letter to his friends at the Public Utilities Commission asking them to approve the tax “administratively.” Expect this “pea,” or charge, to magically reappear on utility bills shortly. It may be named something else and laundered in a way to bureaucratically circumvent the requirement that state taxes be approved by a two-thirds vote, but no matter what it is called, it will be a $3.2 billion burden on California utility users.

And finally, in a story reported in both the Sacramento Bee and San Francisco Chronicle, the High Speed Fail, er, Rail Authority has wasted millions of dollars on an extensive public relations effort seeking to bolster the flagging public support for this massive boondoggle. Despite overwhelming evidence that this project can never be built, it appears that the only people getting rich are politically connected p.r. hacks. Meanwhile citizen taxpayers are stuck with the bill.

At a time when automatic spending cuts to the state budget are about to be triggered, our Legislature continues to let this fiscal disaster continue. Even Jerry Brown has doubled down on High Speed Rail stating that the project has his support.

These three examples are only a small part of what is wrong with governance in California today. Is it any wonder that people don’t trust politicians?

(Jon Coupal is president of the Howard Jarvis Taxpayers Association – California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights. This story was first posted on HJTA.org)

The Route to Teacher Union Extinction: Is the Other Shoe Dropping?

In my October 18th post, I wrote about Terry Moe’s book Special Interest: Teachers Unions and America’s Public Schools. I specifically addressed that part of the book in which he builds a scenario for the eventual undoing of the teachers unions. One of the two ways he claims this will happen is via technology, in the form of online learning. The other route to marginalization is the realization by Democrats that education is really a civil rights issue and that they are morally bound to get on board with reform and choice. By adopting this position, they will be abandoning their longtime political allies – the teachers unions.

As with the rapid ascent of online learning, Moe’s second nail in the unions’ coffin is picking up speed. In a recent Huffington Post entry, Joy Resmovits addresses the “new education lobby.”

“It’s ambitious, expansive and, in some cases, modeling itself after sprawling single-issue lobbying organizations like the National Rifle Association and AARP. The groups, which have in large part been created by hedge fund managers and lapsed government officials, count political operatives inside state legislatures and even the Democratic National Committee among their ranks. And they’re using the power of their fundraisers’ purses and sophisticated messaging outfits to push their agendas in local and school-board elections across the country.”

Traditionally, education reform and school choice have been conservative/libertarian causes. Starting with vouchers, a creation of libertarian Milton Friedman in the 1950s, the ideas for education reform, with few exceptions, have come from right leaning think tanks like Pacific Research Institute, Hoover Institution, Goldwater Institute, Reason Foundation, Friedman Foundation for Educational Choice, etc. The policy ideas put forth by these and other similar organizations have formed the basis for many of the education reforms that are in place today.

What is perhaps most interesting about this “new education lobby” that Resmovits writes about is that many of them are Democrats. Yes, Democrats are essentially picking up the ideas put forth by the right and taking them to statehouses all over the country. And the teachers unions are definitely not enthralled with this new development.

Democrats for Education Reform, founded in 2007, has become a potent lobbying force in just a few years. They have set up shop in ten states and their reform efforts are essentially indistinguishable from those on the right. Consequently, they have not escaped the wrath of the United Federation of Teachers in New York City. The union claims that DFER:

  • doesn’t sound like Democrats.
  • hates teachers.
  • knows nothing about education.
  • is made up of hedge fund managers (Whitney Tilson, John Petry, et al) and billionaires (Eli Broad, who funds DFER’s sister organization Education Reform Now.)
  • is comprised of narcissists.

(Note to reform-minded Democrats – welcome to the world that those on the right have lived in for many years!)

Another example of the Democrat-as-reformer-lobbyist phenomenon is Michelle Rhee, who is a self-described “lifelong, card-carrying, dyed-in-the-wool Democrat.” After a short, successful and highly publicized reign as Chancellor of D.C. public schools, she left her position after the American Federation of Teachers donated over $1 million to unseat Rhee’s boss, Mayor Adrian Fenty, in 2010. Shortly after Fenty’s loss, Rhee founded Students First, an advocacy organization whose goal is to raise $1 billion in ten years. The AFT’s response to Ms. Rhee’s efforts was to put up a smear website calledRheeFirst.

Whereas DFER is out to reform the Democratic Party, Rhee will work with anyone or any organization that shares her reform vision.

There are many other Democrats working hard for reform and incurring the wrath of the unions. Kevin Chavous, cofounder of DFER and Chairman of the Board of Black Alliance for Educational Options, Davis Guggenheim, director of Waiting For Superman and Ben Austin, who fathered the first Parent Trigger law, are just a few examples of Democrat’s joining the education reform movement.

Even with this new bipartisan reform effort, the teachers unions are not about to fold their tents and give up any time soon. It’s going to be a long bloody war with some battles being won (Wisconsin) and some lost (Ohio.) In fact, just last week, Dropout Nation’s Rishawn Biddle wrote about the recent release of the National Education Association’s 2010-2011 LM-2 filing, a required Department of Labor annual report. revealing recent political expenditures.

“The numbers are spectacular. The nation’s largest teachers’ union spent $133 million in 2010-2011 on lobbying and contributions to groups whose agendas (in theory) dovetail with its own. This included $255,000 to the Economic Policy Institute, the progressive think tank cofounded by Robert Kuttner and Robert Reich, whose education reports generally take a pro-NEA slant….”

“Among the big recipients of the NEA’s largesse this year were ProgressNow’s affiliates in Michigan and Colorado, each receiving, respectively, $10,000 and $125,000, for education policy advocacy and legislative advocacy activities. ProgressNow, by the way, was one of the key players in ousting school reform-minded Michigan legislator Paul Scott from his statehouse seat earlier this month and has decried Gov. Rick Snyder’s efforts to allow for the expansion of charter schools and school choice….”

“The usual suspects are also on the list: Communities for Quality Education, which has long been subsidized by the NEA, collected $1 million in 2010-2011. Anti-testing group FairTest picked up $35,000 this time around. So are some leading education traditionalists: Parents Across America co-founder) Leonie Haimson’s Class Size Matters picked up $25,000 from the union last fiscal year, while Western Michigan’s Gary Miron (whose rather flawed study on KIPP’s charter schools earlier this year was the subject of Dropout Nation‘s analysis) picked up $5,000. Meanwhile the NEA directly poured $43,000 into the Save Our Schools rally held this past July; this doesn’t include dollars poured in by state and local affiliates.”

With the ability to throw this kind of money around, NEA’s effect on maintaining the status quo with its attendant failing educational policies cannot be exaggerated. So those of us involved in reform will have to be satisfied as long as the ball is being advanced, even if it’s slower than we would like. As writer Louis L’Amour once said, “Victory is won not in miles but in inches. Win a little now, hold your ground, and later, win a little more.”

(Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues. This article was first posted on UnionWatch.)

State of California Cannot Support More Spending

This week, Gov. Jerry Brown unveiled his new proposal to increase taxes $7 billion to support higher state spending. The Think Long group of the rich and famous is proposing $10 billion in higher taxes to back more spending. Other tax increases are on being cooked up. Voters would have to pass one more of these tax increases in November 2012.

But a new chart I’ve devised shows the state just does not have the economic foundation to support higher spending, and the taxes to pay for it. The chart follows. It is a “combination chart” showing two different things along the same timeline.

Chart courtesy of John Seiler, CalWatchdog

Close Correlation

Note how closely the data correlate, especially in recent years. (All data are adjusted with the Consumer Price Index to reflect 2010 dollars. For 2010 expenditures, I’m using the 2010-11 budget number, $91,480 billion, from the governor’senacted Budget Summary. All other budget data are from his January 2011 Budget Proposal, Appendix Section 8.)

The left vertical axis, which tracks the red line, scores Californians’ median household income from 1995-2010. That’s how much money our people make, per capita. It’s how much can be tapped to support state spending.

Notice how it has risen and fallen depending on the booms and busts in the California economy.

Next, notice the right vertical axis, which tracks the blue line, and which scores state general-fund expenditures per capita. That’s how much, on average, the state spends of the taxpayers’ money. (Median household income data come from the U.S. Census Bureau, and are not yet available for 2011.)

The one anomaly is on the far right, in which expenditures are much higher than median income. This may indicate that the state still is spending more than Californians can support. But it might be that the data need to be revised. When Gov. Brown presents his next budget proposal in January, I’ll re-do this analysis to reflect fresher numbers.

Seiler’s Second Law

But for most years, especially recently, the ratio is that the state general fund spends approximately 1/25th of median household income.

I call this “Seiler’s Second Law of the California Budget”: The California state general fund can’t spend more than 1/25th ofmedian household income.

(Seiler’s First Law is that the state general fund can’t spend more for the general fund than 6.2 percent of personal income. I plan updating this, too, when the January budget numbers come out.)

There’s also a corollary to Seiler’s Second Law: If the state wants to increase general-fund expenditures, it must enact policies that foster increases in median income.

Increasing tax rates, which will suppress median income, thus would be counterproductive. The tax rate increases would chase away businesses that create high median-income jobs, and well could decrease tax revenues.

Already, California’s median income has been hammered by the recession. From 2006 to 2010, median incomes in California crashed by 9 percent, almost double the 5 percent national rate.

Put another way, if California’s recession had struck at the national rate, our median income would have dropped only 5 percent, instead of 9 percent. Thus, our median income would be about 4 percentage points higher, or about $2,000 more.

Not the 1970s

In his “An Open Letter to the People of California,” calling for his $7 billion tax increase, Gov. Brown wrote, “Spending is now at levels not seen since the 1970s,” during his first stint as governor. He’s living in the past.

The real numbers are shown in the chart above, indicating that median income has crashed to the levels of the mid-1990s. The numbers show that, except for population growth, the California economy hasn’t grown since about 1998, when Pete Wilson was governor. We’ve suffered a “lost decade” — and are working on a second.

In his letter, Brown lamented cuts he made to schools, public safety and aid to the poor. But you can’t spend what you don’t have, and can’t get.

In his first stint as governor in the 1970s, Gov. Jerry Brown spoke of an “era of limits.” He was wrong. The economy, especially median income, kept growing through the 1970s, 1980s and up to about 1998. On the foundation of median income growth, the state general fund could expand. But the foundation first had to be laid.

The era of limits is now.

And the only way out of this new era of limits is to increase median household income through pro-business, pro-jobs and pro-taxpayer policies.

The chart shows there’s no other way.

(John Seiler, an editorial writer with The Orange County Register for 19 years, is a reporter and analyst for CalWatchDog, where this piece first appeared.)